Hayes v. Union Mercantile Co.

MR-. JUSTICE MILBURN

delivered the opinion of the

court.

This cause comes before us on appeal from the order denying a motion for a new trial and from the judgment.

The respondent has interposed a motion to' dismiss the appeal. The action was prosecuted by the plaintiff against the three defendants named, to recover for tort. The verdict was against all three of the defendants for $3,000. Judgment was taken and entered against the Union Mercantile Company and Louis Hillebrecht only, the court holding Fuhrken not liable. Two notices of intention to move for a new trial were served and filed, — one jointly by the Union Mercantile Company and Hille-brecht, and another by Euhrken. They all, however, filed a single motion in writing for a new trial. This motion was overruled on condition that the plaintiff abate all except $1,000 of the sum awarded by the jury. This he did. The Union Mercantile Company and Hillebrecht appealed. Fuhrken, of course, did not.

The notice of appeal, addressed to the proper parties, is as follows: “You, and each of you, will please take notice that the defendants Union Mercantile Company and Louis Hille-brecht each hereby appeals to the supreme court of the state of Montana from the judgment made, given and entered in the above entitled cause on the 30th day of November, 1898, in favor of plaintiff, and against the defendants Union Mercantile Company and Louis Hillebrecht, and each of them, and modified by order of court made on the 15th day of April, 1899, and the stipulation or waiver filed by the plaintiff on the 25th day of April, 1899, and from the whole and every part of said judgment. And you, and each of you, will further take notice that the defendants Union Mercantile Company and Louis Hille-brecht each hereby appeals to the supreme court of the state of Montana from the order made, given and entered in the above entitled cause on the 25th day of April, 1899, overruling the motion of the defendant Union Mercantile Company and the defendant Louis Hillebrecht for a new trial in said cause, and from the whole and every part of said order.”

An undertaking in the sum of $300 was filed, conditioned, after -reciting that the Union Mercantile Company and Hille-brecht are about to appeal to the supreme court, as follows: “Now, therefore, in consideration of the premises and of such appeal,” etc.; and the sureties promise “that the said appellants will pay all damages and costs which may be awarded against them, or either of them, on the appeal, or dismissal thereof.”

The motion to dismiss is upon two grounds: (1) That no undertaking on the appeal of tire Union Mercantile Company has ever been filed, and the only undertaking on appeal herein is an undertaking reciting a joint appeal by the said Union Mercantile Company and Lords Hillebrecht, which said undertaking is conditioned upon the affirmance or dismissal of said joint appeal; and (2) that the notice of appeal does not appear to have been served upon the defendant Euhrken, it being assumed that he is an adverse party.

Appellants, before the hearing of the motion to dismiss, each filed a good and sufficient undertaking, approved by the Chief Justice; they depending upon Section 1740 of the Code of Civil Procedure.

Excellent briefs bearing upon this motion have been filed and considered by this court.

As to the first ground of the motion: If damages and costs should be awarded against both of the appellants, and suit should be brought against the sureties on the undertaking, could there be a valid defense on the ground that the undertaking was void ? We think not. It may be that the undertaking is insufficient, in that, if damages and costs should be awarded against only one of the appellants, or if the appeal as to one should be dismissed, suit could not be maintained on tbe undertaking, for the reason that the sureties did not undertake to respond in such a case, but only in case “the appeal” of the two appellants named in their undertakings should be dismissed, or in case damages and costs should be awarded against them. The undertaking speaks for itself. The sureties, if sued, could not aver and maintain that the Union Mercantile Company and Louis Hillebrecht had not appealed, as they in their undertakings state that they (the Union Mercantile Company and Louis Hillebrecht) were about to do. These parties did appeal, and it would be the very refinement of technicality in the construction of language to hold that the words “on the appeal,” rtsed in the undertaking in connection with the word “appellants,” mean, and can only mean, the appeal of one of the appellants. The language of the undertaking means that if the Union Mercantile Company and Louis Hillebrecht do appeal, and do not prevail, the sureties will see to it that the appellants pay the costs and damages, or that the sureties will pay them. If the undertaking is insufficient to cover the case of the failure of some one of the two appellants to prevail in its or his appeal, — and this point it is not necessary for us to decide, — then the fact that the appellants have severally filed new undertakings, as above stated, is sufficient to save them from an adverse ruling on the motion to dismiss on the first ground. (Coleman v. Perry, 24 Mont. 237, 61 Pac. 129, with citations.)

As to the second reason alleged why the appeal as to the Union Mercantile Company should be dismissed: The reason given is that Fuhrken is an adverse party, and no notice of apt-peal was served upon him. The appellants, the Union Mercantile Company and Louis Hillebrecht, amending the record, by affidavit show service by mailing a copy of the notice of appeal to Fuhrken at his correct postoffice address, and further show that they, the said counsel, on the same day acknowledged service for Fuhrken as counsel for Fuhrken. If Fuhrken he adverse party, because he may be interested in seeing that the judgment be affirmed against the appellants, for that they may be compelled to pay without contribution from him as joint tort feasor, then counsel for the appellants could not accept service for their adversary, Fuhrken; and it would be proper and right to serve the notice by mail on him, as was done. It does not appear that he had any other counsel of record, or at all. Notice was given to Fuhrken.

The motion to dismiss is denied.

This action was commenced in March, 1898, for wrongfully and maliciously procuring, without probable cause, an attachment to be levied upon plaintiff’s goods. It is alleged in the complaint that ever since 1890 the plaintiff has been, and at the time of the alleged grievance was, doing a wholesale and retail business in Lewis and Clarke county; that the defendant Union Mercantile Company was and is a corporation; that on January 4, 1898, the said defendant corporation, by and through the defendants Hillebrecht and Fuhrken, officers thereof, commenced an action in the district court of Lewis and Clarke county against the plaintiff for $2,018.15 and costs, and sued out a writ of attachment; that defendants caused the writ to be executed by levying upon and seizing all of plaintiff’s stock, of the value of $15,000, and retaining possession thereof for two days; that no more than $250 was due to the defendant company, although plaintiff admits that he owed the full sum of $2,018.15 ; that if suit had been brought, and a writ of attachment issued only for what was due, to-wit, $250, the plaintiff could and would have paid that amount and costs, and thus have avoided the attachment; that the defendants maliciously and purposely caused the levy for the amount of $2,018.15 in order to destroy the plaintiff’s business and injure him; that plaintiff was doing a prosperous 'business; and “that, by reason of the wrongful and unlawful acts of the said defendant Union Mercantile Company, plaintiff’s trade and credit have been impaired and destroyed, and will be seriously injured for a long period in the future; that he has been financially cramped and distressed, to his damage in the sum of $10,000.”

The defendants answered, and denied all the material allegations of the plaintiff, except so far as, further answering, they admitted and averred that the debt of $2,018.15 was due at the time of the commencement of the suit and of the issuance of the writ of attachment; that, after stating the facts to legal counsel, and being by him advised that they had a good cause of action on the merits, they commenced the action, and the writ was issued and placed in the hands of the sheriff, with instructions to levy upon sufficient property to satisfy the claim and costs; that the sheriff on the said 4th day of January, after the close of the business of the defendant (plaintiff and respondent here), went to his store and told him, of his possession of the writ, and was by respondent requested to forbear the removal of any goods, but to take possession, and he would settle; that thereupon the Union Mercantile Company and respondent agreed that the sheriff should not remove any goods from the store, but should remain nominally in possession, and respondent should continue his business without interruption; that immediately the respondent then applied to appellant Union Mercantile Company to settle the said action and all issues; that a full settlement was made in consideration of said appellant accepting certain goods returned, and the guaranty of Bach, Cory & Co., instead of a certain part of the money sued for, and the respondent waived any claim for damages arising out of said suit, and that said settlement was in full of all demands of either of said parties against the other, and thereupon, and at noon of January 5th, the sheriff withdrew; that the defendants Hillebrecht and Fuhrken took no part as private persons in the case, but acted, so far as they did act at all, as officers of the company, and not otherwise, save and except that they executed an undertaking as sureties only, and without malice or intent to injure plaintiff in any way or at all. Defendants further averred that the goods said to have been levied upon were not worth more than the sum of $2,018.15, plus costs and interest, and the wages of the servants of respondent.

There are twenty-eight assignments of error. We shall notice only those designated or referred to in the argument contained in the brief of counsel for the appellants.

Appellants argue, referring to assignments 1, 2, 3, 4, 5, 7, and 11, that “it was error to admit evidence relating to respondent’s amount of business, its profits prior to tbe attacbment, tbe financial credit tbat be bad, and wliat effect tbe attacbment had upon bis credit.”

It is alleged and denied, respectively, tbat tbe business of tbe respondent at tbe time of tbe alleged levy was prosperous. In a case of malicious attachment and seizure without probable cause, it is not error to admit evidence as to loss of credit directly traceable to. such levy and attachment suit. Tbe weight of authority is to> tbe effect tbat it is not error to admit evidence tending to show tbat by wrongful and malicious attacbment tbe business credit of tbe alleged debtor has been injured. (Shinn on Attacbment, 379, and cases, cited; Kennedy v. Meacham (C. C.), 18 Fed. 312; Tynberg v. Cohen (Tex. Civ. App), 24 S. W. 314; Drake on Attachment (7th Ed.), 745; O’Grady v. Julian, 34 Ala. 88; Flournoy v. Lyon, 70 Ala. 308; 19 Am. & Eng. Enc. Law, 650, 651, 704, and citations.) The four cases, to-wit, Lowenstein v. Monroe, 55 Iowa, 82, 7 N. W. 406, Campbell v. Chamberlain, 10 Iowa, 337, Mitchell v. Harcourt, 62 Iowa, 349, 17 N. W. 581, and Anderson v. Shone, 72 Was. 566, 40 N. W. 214, 7 Am. St. Rep. 885, are contra-. Tbe Iowa court admits tbat there are courts Avhich do not agree Avith it, and says tbat “in most of tbe other states” tbe rale is in conformity Avitb Campbell v. Chamberlam, supra, but do.es not cite any case of these other states. ° The Wisconsin case does not, in terms, hold tbat recovery in case of wrongful and malicious at-tacbment cannot be had for injury to credit resulting from such attacbment.

The assignments are not tenable.

Deferring to assignments not designated in the argument, appellants say that it was prejudicial “to permit Mr. Hayes to testify what he Avould have done if appellants, did not agree to extend the time of tbe payment of tbe $200, and tbat be would let it stand, and take tbe 'chances of being attached.” No attempt is made to argue this point, or. to show why this was prejudicial, if it Avas. We are even left in the dark as to' wha.t $200 is referred to.

There is a suggestion in the brief that the court was inconsistent in permitting testimony to be introduced, over objection of the appellants, relating to appellants’ knowledge of respondent’s method of doing business, and whether or not he ever failed to meet payments immediately after “pay day” at the East Helena smelter, and about his credit business, and what day of the month was “pay day.” It is also stated in the same paragraph of the brief that these matters were not in issue in the case. There was a smelter near respondent’s store, the workmen in which being his customers and accustomed to pay him their accounts on the smelter pay day, as alleged by the respondent. No reference is made h> any particular one of the assignments, or to any part of the 216 pages of the testimony. We cannot go into this matter further than to say that this evidence, whatever it was, might have been pertinent to the issues.

Counsel say it was error to overrule appellants’ ■ motion to strike out the testimony relating to the publication of the attachment, and allowing other tesimony to be introduced on that subject. This doubtless refers to assignment 6, which is as follows: “It was error to overrule appellants’ motion to1 strike out the testimony relating to the publication of the attachment through Dun’s Agency, and its being wired over the country, and in admitting other testimony upon the subject of the publication of the attachment proceedings.” No reference is made to the parts of the transcript where the “other” testimony can be found. It is argued that the court was wrong, because it was not alleged in the complaint, or proven or attempted to be proven, that appellants had anything to do with any publication of the fact of such attachment. Counsel argues — Eirst, that, if not pleaded, publication, cannot he proven; and, second, if pleaded, proof may not be offered unless defendant was party to such publication. In support of this point, appellants cite three cases: Maskell v. Barker, 99 Cal. 642, 34 Pac. 340; Tynberg v. Cohen (Tex. Civ. App.), 24 S. W. 314; and Jamison v. Weaver, 81 Iowa, 212, 46 N. W. 996. The complaint in the Maslcell-Ba/rlcer Case alleged that the publication caused the plaintiff much anxiety. It says nothing about credit There was an attempt to’ levy upon real estate; but, the writ not having been levied in the manner and form as provided by the statute, — the constable, it was alleged, having received the writ, and filed a copy with the county recorder, with a description of the real estate sought to be levied upon, with a notice that it was attached, — the court held that this was not a levy, and declared in the opinion that the malicious suing out of a writ of attachment, without probable cause, without levying it upon the property of the alleged debtor, would not authorize a recovery by such party. This having been held, the addition of the remark that it did not appear that the defendant was in any way connected with the notices- which it was alleged were published was not necessary to a determination of the cause, and the remark seems to be obiter. No authority is cited for any of the conclusions of the court in the case, and the remark referred to is not authoritative or persuasive.

The Tynberg v. Cohen Case is not in point, for that the announcement in the paper was not such as one expects to be made in a case of attachment. The newspaper falsely announced that the alleged debtor had failed in business. The court, in discussing the point, said: “The mere levy of the attachment * *

* did not authorize such a publication.” This language does not exclude the proposition that a levy of attachment would authorize a newspaper to state that an attachment had been levied.

The Jamison-'Wemer Case is not in point. The court in that case held that it was not error “to refuse to allow the defendant to prove that his creditors had returned to him printed slips stating that he had been attached, and that notices had been sent to the commercial papers.” It nowhere appears in the statement of that case that the levy of the attachment Avas alleged to be malicious and without probable cause. It was merely said to be Avrongful. There is nothing to show that the defendant, in his counterclaim against the plaintiff, alleged damages for injury to his credit. The Avord “credit” does not appear in the opinion or in the statement of the case. Although the Iowa court-says that the testimony Avas clearly inadmissible unless the publication was traced to the party suing out the writ, this remark does not persuade us, as the case before us is one for malicious attachment, without probable cause, to the injury of the debtor’s business credit.

Being of the opinion, as we are, that malicious attachment without probable cause is a ground of action, in the trial of which action testimony is admissible to prove injury to business credit, it follows, as we think, that it is proper to prove that the news of the attachment was published in the usual way to the world in general, and to the business world in particular. It is a matter of common knowledge that attachments, levy of execution, assignments, mortgages, and the like, tending to1 show business embarrassments and difficulties, are published for the information of all persons who are doing or who are likely to do business with the alleged debtors. It is a matter of common knowledge, also, that there are information agencies, long established, for the sole purpose of giving such information.

A point also relied upon is that there could be no testimony as to publication, since there was no allegation in the complaint of publication, and that the same is irrelevant, immaterial and incompetent, and that there is nothing to show that the defendants, or any of them, caused or induced such publication. If one rightfully and lawfully cause an attachment to- be levied upon the property of a person in business, one naturally expects the fact of such attachment to be published to the business world, and that the credit of the person attached, if he have any, may be injured; but such a person is not liable in damages, for he has the right to levy the attachment to secure an honest debt. If the attachment be made maliciously and without probable cause, he is liable for damages to the alleged debtor, and damage to his business credit naturally follows, and such damage should be compensated. In Michigan (Brand v. Hinchman, 68 Mich. 590, 36 N. W. 664, 13 Am. St. Hep. 362) it is said that such publication, naturally injured the credit of the person sued. The Michigan court does not cite any court’s opinion in support of its declaration, but it was a question to be decided, and we agree with its views. If such injury is naturally to be expected, and such publication to be naturally expected, because all business men and all people at large know that such publication is generally made of such facts, then there is no necessity to specially set up in the complaint what was intended to be proven, to-wit, the particular matter of publication, which, it was attempted to be proven, was one of the means of injuring the plaintiff’s business credit; it being alleged in the complaint that the levying of the attachment injured the credit and business of the plaintiff. Under a general averment of malicious attachment of property, recovery may be had for the general loss of credit and mercantile character (13 Enc. PI. & Prac. 453), and general publication of such attachment all over the country would be admissible evidence, tending to show such injury. The definition of malicious prosecution is not limited to criminal suits. (19 Am. & Eng. Enc. Law, 650, 704; O'Grady v. Julian, 34 Ala. 88; Closson v. Staples, 42 Vt. 209, 1 Am. Pep. 316.) The rules of evidence in suits for malicious prose cution for alleged crime apply here. An averment of arrest, imprisonment, and tidal on a criminal charge authorizes a recovery for all the injury to reputation. (13 Enc. PL & Prac. 452, and cases cited.) In Minneapolis Threshing Machine Co. v. Regier, 51 Neb. 402, 70 N. W. 934, it was held that an uncolored statement of such arrest and trial, made by a newspaper, is a natural and probable consequence and a direct consequence of the institution of such proceedings, and the fact that the prosecution resulted in such publication may be shown, to aid the jury in estimating the damages. The Nebraska court cites Filer v. Smith, 96 Mich. 347, 55 N. W. 999, 35 Am. St. Rep. 603. There is, of course, a difference between one’s reputation, which may be injured by the publication of one’s arrest and tidal for alleged crime, and one’s business credit; but, by a parity of reasoning, it appears to us that if, in the one ease, testimony as to publication is admissible to prove natural result of the tort, then it may be in the other to prove such result.

Complaint is made, and the point argued, that the court erred in excluding offered testimony to prove that the plaintiff herein, while the sheriff was at the store, settled the demands of the-defendants in the attachment suit, procured the suit to be dismissed, and expressly waived all damages wbicb lie might have suffered from wbat he avers was a malicious attachment. Appellants say that the evidence was excluded on the ground of duress. Defendants set up, inter alia, payment, release, and waiver of damages. We do not think it is necessary to consider the point which has been made as to the absence of a replication, further than to remark that no replication was required at the time the answer was filed. It was for the jury to determine whether there was duress or not. The defendants certainly do not seem to have offered to prove that they coerced the plaintiff herein to settle. They asked their witness Mr. Newman certain questions as to what actually occurred and what was said at the time of the settlement. All this was objected to, and the court ruled it out. Then the defendants made a formal offer to prove the release and waiver, and the conditions thereof, and that the application to settle was made by plaintiff. This offer was rejected. It may have been shown that plaintiff did or said something then and there inconsistent with his material averments in his complaint. What was said and done by the parties to the conversation may have led the jury to believe that there was not any coercion or duress on the part of the appellants. If it should appear from the conversation that the then debtor (plaintiff herein) admitted that he owed the money, but, while claiming that it was not all due, saw and acted upon a chance to make an advantageous bargain for himself by threatening his creditors with a damage suit, and did make such a bargain, which would be better for him than paying the cash when it should fall due, and did offer to settle in such a way and release his creditors from all damages, would he not be the person who was taking advantage of the situation? Would this be coercion by his creditors? We do not intimate that such was the case, but it may have been, for all one can tell from the record as called to our attention in the briefs. The court should have let all the circumstances appear. It was alleged that plaintiff released his attaching creditors. This was an issue in the case. All the facts as to how such release, if granted, was given, should have gone to tbe jury. If be was - wrongfully and unlawfully coerced, tbis would bare to appear to tbe jury, under proper instructions of tbe court, before be could avoid sucb release or waiver, and maintain bis action for damages for tbe alleged malicious attachment. Tbe court erred in rejecting tbe offer to prove tbe circumstances and conditions of tbe alleged settlement of tbe suit, and release of plaintiff’s claim for damages.

As to tbe assignments and argument referring to tbe instructions given and refused, it is enough to say that we find no error in those given and assigned as erroneous. If tbe court bad admitted tbe evidence offered to prove tbe circumstances of tbe alleged settlement, then instruction No. 4, refused, might* as tbe evidence might appear, have been proper, for it correctly states tbe law that waiver of a right to demand cash, and tbe accepting of something else of value in consideration of a lawful contract, is a good consideration to- support sucb contract.

We do not notice tbe argument as to instruction No-. 5, ref-fused, for tbe reason that no assignment refers to- that instruction.

Instruction No. 6, refused, is covered by instruction No-. 11, given; hence it was not error to refuse tbe one asked by appellants.

We find no error in refusing to give defendants’ instruction No. 18, it being contrary to tbe views expressed hereinbefore as to damages for injury resulting from tbe publication of tbe alleged attachment.

It was not error to refuse defendants’ instruction No. 14, as it states, with other things, that, in a case of a “wrongful levy,” “any damages that may have resulted to tbe defendant during tbe time tbe property was wrongfully detained” might be recovered. Tbis is too broad. Neither a mere wrongful levy, nor a malicious levy, without probable cause, will warrant a recovery for “any damages to- tbe defendant during tbe time tbe property was 'wrongfully detained.” We add that malicious levy without probable cause is a wrongful levy, but not every wrongful levy is malicious; hence tbe defendants, in offering tbis refused instruction, should have added some apt word or phrase to the word “levy/’ to show that they meant a wrongful levy without malice, if this is what they did mean. It was not error to refuse the instruction. In the instruction given, which seems to be a substitute for the one asked, the court improperly used the words “any damages.”

Complaint is made in the argument that the court admitted some evidence, over the objection of the appellants, as to' when the money owing by respondent was to be paid, according to an understanding and a long established practice, without express agreement, and that the court was emphatic as to its opinion that the evidence was admitted to corroborate the respondent, Hayes, and to show a contract, and, further, that the court inconsistently gave instruction No. 14. We see no error in the instruction. It is as follows: “If, by reason or pursuant to a uniform practice, extending through years, it was mutually understood by the defendant company and the plaintiff that the plaintiff was to have until ‘pay day’ of the succeeding month in which to pay for goods purchased during the -month preceding, then he was entitled to such time, though it was never expressly and in so many words agreed between the parties; in other words, an agreement for time may be implied from the acts of the parties, the circumstances and conditions of their business relations, though express words may not have been employed to indicate their agreement.”

The evidence is conflicting, and we cannot say that the court erred, on the hearing of the motion for a new trial, in holding that the evidence would support a verdict of damages in the sum of $1,000, to which amount the verdict-was reduced by the court.

Because of the errors found and discussed herein, the order denying the motion for a new trial and the judgment are reversed, and the cause is remanded for a new trial.

Reversed and remanded.